Lawsuit against Gov't for Controller Error

Discussion in 'Aviation Mishaps' started by Kenny Phillips, Feb 9, 2020.

  1. Kenny Phillips

    Kenny Phillips En-Route

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  2. Let'sgoflying!

    Let'sgoflying! Touchdown! Greaser! PoA Supporter

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    I have often said to myself that if the $#& hits the fan I hope I will turn the audio down and rotate the 530 knob to nearest (in the event I don't already have a landing site picked)
    I think we know now, not to place any faith in any help atc can provide.
     
  3. Radar Contact

    Radar Contact Pattern Altitude

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    While the loss of life here is tragic, I think this comment is a stretch. The controller on the other end may be an ATP with thousands of hours total and a similar emergency under his belt you are going through all the way to a brand new trainee with minimal aviation experience. Either way, they are human and don’t walk on water.

    It’s up to the PIC to be the final authority and determine what emergency course of action to take. As a pilot, ATC really helped me in 2 emergency and 1 distress situation. Pretty sure they helped @Lance F dead-stick a Mooney once.

    If in the same spot, I’ll be dialing the nearest in on my IFD and comparing with ATC’s suggestion to make my decision.
     
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  4. Brad Z

    Brad Z Final Approach

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    While it doesn't sound like that controller was going to be an Archie League award finalist, the pilot certainly didn't help his own situation. Sounds a bit like a case of "ATC take the Wheel". But ultimately, a task saturated pilot in an emergency is forced to seek all available help. It sounds like ATC would have been better off saying "unable" than sending the pilot in circles. I haven't ready the accident report but I suspect it says that the actions of both the pilot and controller contributed to the accident. Who knows what conclusion the jury will come to.
     
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  5. Velocity173

    Velocity173 Touchdown! Greaser!

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    I was curious how Center knew there was a private strip near them? Outside of hospital pads, I don’t recall private strips being displayed on video maps.
     
  6. Fearless Tower

    Fearless Tower Touchdown! Greaser!

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    This. I don’t know about the particular details on this one, but I’ve consulted for the DOJ on a similar case where a Bo lost power in IMC and the family of the pax tried to sue the govt. That suit was dismissed when the plaintiff’s ‘expert witness’ made a fool of himself in front of a judge.

    The US Government self insured and has very deep pockets. Whenever there is a plane crash, if there is any way to sue Uncle Sam, the ambulance chasers will.

    DOJ is all worked up right now over the Kobe Bryant crash because the pilot was ‘talking’ to ATC.
     
  7. James331

    James331 Ejection Handle Pulled

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    Unless it’s coming out of that departments pension fund, or resulting in downsizing to pay for it, it’s more a lawsuit tax payers will have to pay.
     
  8. Velocity173

    Velocity173 Touchdown! Greaser!

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    Controller friend of mine was caught up in a lawsuit probably 30 years ago. Pilot of a twin asked him about comvecive activity along his route (V1 east coast). He told him his display only displays precip and that there was none displayed in his airspace. Well a 100 or so miles later I believe around Brunswick Ga, they ran into a storm and came apart. Family sued saying he didn’t provide enough weather information to the pilot. Not sure what SAV or JAX provided but it goes to show you, when the government is involved the ambulance chasers will be lining up.
     
  9. midlifeflyer

    midlifeflyer Touchdown! Greaser!

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    The Government filed a motion to dismiss the case based on the "discretionary function" rule. The hearing is scheduled for February 18.

    To simplify, there is an ancient principle which says "the King can do no wrong." and governments can't be sued unless they consent to be sued. The Federal Tort Claims Act allows the US to be sued but only for the kinds of things regular people and organizations can be liable for. Think negligence driving a car. One of the stated exceptions is the government can't be sued for is performing a "discretionary function" - basically activities which reflect policy decisions.

    The government is claiming the legal claims being made in the case all fall into the discretionary function category, so the case should be dismissed.
     
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  10. Brad Smith

    Brad Smith Line Up and Wait

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    The problem with deciding guilt will be "the jury" of people chosen that have no aviation experience whatsoever. Cooks, housewives, gardeners, executives etc. from all walks of life but no "biased" pilots or fellow ATC personnel. Should be a jury of your peers, not ones chosen specifically for their lack of knowledge of aviation. The lawyers will take every advantage to nail the controller by having ignorant jurors decide on issues with absolutely no personal experience. What a system.
     
  11. JScarry

    JScarry Pre-takeoff checklist

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    Considering the number of "pilots" who I have blocked on this and other boards because they are complete morons, I doubt that you’d get better outcomes if they were allowed on the jury.

    Can you imagine how long jury deliberations would go on if the jurors were composed of just pilots from Beechtalk?
     
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  12. midlifeflyer

    midlifeflyer Touchdown! Greaser!

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    Not in this case. There is no jury trial right in federal tort claims.
    https://www.law.cornell.edu/cfr/text/32/750.32
     
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  13. Plano Pilot

    Plano Pilot Pre-takeoff checklist

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    They had 32 gallons in the other fuel tank.

    Probable Cause and Findings
    The National Transportation Safety Board determines the probable cause(s) of this accident to be:


    The pilot's failure to properly position the fuel selector, which resulted in a total loss of engine power due to fuel starvation. Contributing to the severity of the accident was the pilot's failure to select an appropriate location for a forced landing, which resulted in the airplane impacting trees. Contributing to the accident was the air traffic controller's failure to provide the pilot accurate information on nearby emergency airport and airfields and the pilot's failure to properly follow the airplane's emergency procedures in the Pilot's Operating Handbook that would have led him to properly position the fuel selector and restore fuel flow to the engine.

    Accident Number: CEN15FA316


    https://app.ntsb.gov/pdfgenerator/R...tID=20150726X81208&AKey=1&RType=HTML&IType=FA
     
  14. luvflyin

    luvflyin Final Approach

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    20 years ago some were. I’d guess it’s still true. No idea what the criteria is for which ones would be mapped.
     
  15. PaulS

    PaulS Final Approach

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    This, RIP. Other people are not going to save you when you pilot an airplane, it is up to you. They can help or they can hinder. The controller told him the first airport was 15 miles, he was at 6,000 feet. That should have taken no more than 5 seconds to figure out that wasn't going to work.

    I have a nearest inset on the airplane I fly, I try to keep that up and available at all times when I am flying. My procedure for engine out is best glide and turn toward the nearest airport. Then attempt restart. I also have the chute option (which is actually considered first, but at 6,000 feet it can wait). I hope I never get tested like this. I also think it is very unfair to blame the controller for this accident in any way.
     
  16. Clip4

    Clip4 Final Approach

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    Steve Fehr and his wife were told an airstrip was close by when it actually was unreachable in their crippled plane, a lawsuit says”

    I suppose the controller is required to know the glide ratio for every aircraft and calculate the winds to determine what’s within distance before giving the vector.


    The pilot should have known he had less than 10 miles glide distance.
     
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  17. Jumpmaster

    Jumpmaster Pre-takeoff checklist

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    Nope. Comes from the judgment fund that’s administered by DOJ, unless the agency is really unlucky and then it comes from appropriated funds of that agency.
     
  18. Jumpmaster

    Jumpmaster Pre-takeoff checklist

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    DOJ tries this gambit in just about every FTCA claim filed. It’s a standard defense move by them. As you know, sometimes they are successful and sometimes they are not. When I was an agency attorney, I really disliked working with DOJ. Always arrogant and never understood the agency’s business. Later I was tasked as a private contractor to support DOJ in a radiation exposure lawsuit involving commercial irradiators. The lead attorney for DOJ didn’t know the first thing about rad exposure and more to the point, couldn’t care less. Lost big time in a case that could have been won.
     
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  19. James331

    James331 Ejection Handle Pulled

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    Which is why we have so much gov running amok.

    Should come out of their pension fund, or better yet first the individuals responsible personal assets.
     
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  20. Radar Contact

    Radar Contact Pattern Altitude

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    Is it just me or do you guys also hear amok and think AMOC (alternative method of compliance)? Clearly my brain is amok and I need my plane back.
     
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  21. GRG55

    GRG55 Final Approach

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    You need two 310s. One fer flyin' and one fer fixin'. ;)
     
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  22. Clip4

    Clip4 Final Approach

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    We will just borrow the money, no big deal.
     
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  23. Kenny Phillips

    Kenny Phillips En-Route

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    You can actually go after an individual, but only if they acted in a criminal manner. Merely being incompetent is protected.
     
  24. James331

    James331 Ejection Handle Pulled

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    It’s good to be the kings men
     
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  25. G-Man

    G-Man Line Up and Wait

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    Not sure how the above complaints differ from private industry? For example, the recent Boeing CEO 'firing' and a host of others.
     
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  26. Palmpilot

    Palmpilot Touchdown! Greaser!

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    A couple of decades ago, a tower controller likely saved my life one day, by telling me about a squall line over a ridge crossing my planned southbound departure route from South Lake Tahoe (TVL) for an IFR flight. I decided to depart VFR instead, so that I could turn downwind and climb over the lake and pick up a popup clearance.

    I didn't realize until later that ODPs don't guarantee terrain and obstruction clearance unless you meet the climb gradient in the takeoff minimums.
    :hairraise:
     
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  27. PaulS

    PaulS Final Approach

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    Important point and to hit the climb gradient numbers you need to be on your airspeed numbers.
     
  28. Radar Contact

    Radar Contact Pattern Altitude

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    Can't speak for centers but on our TRACON STARS scope if you hit splat 1 (*1) and slew it will show the closest airport/grass strip. As long as it is listed with the FAA of course. We're moving up in the world since you were last in the dark room. :)
     
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  29. PPC1052

    PPC1052 En-Route

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    Color me skeptical that this will be found discretionary rather than ministerial.
     
  30. PPC1052

    PPC1052 En-Route

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    Here's a case we were involved with where we were successful in getting fault assessed against ATC as a co-defendant. We were pretty happy with the judge's apportionment of fault.

    https://law.justia.com/cases/federal/district-courts/FSupp/924/1518/1472049/

    Judge Tinder was an excellent judge (as you can probably discern from his opinion), and was later appointed to the 7th Circuit Court of Appeals.
     
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  31. midlifeflyer

    midlifeflyer Touchdown! Greaser!

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    If you've been reading my posts on lawsuits long enough, you'll know I try to explain the process and (almost) never editorialize or give predictions on what I think of it or how I think it will turn out.
     
  32. PPC1052

    PPC1052 En-Route

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    I don't mind sharing my educated guesses. I just try to make sure I leave a little wiggle room. And for what it's worth, I wasn't suggesting you were of the opinion that the motion would be successful.
     
  33. luvflyin

    luvflyin Final Approach

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    Do you have a link to the NTSB docket on this?
     
  34. NoHeat

    NoHeat En-Route

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    A chain of links that went wrong, as in most fatal accidents.

    In a trial, I wonder how a plaintiff's lawyer gets around the fact that removing any link in that chain, not just the one they name in their lawsuit, would have prevented the fatalities.
     
  35. midlifeflyer

    midlifeflyer Touchdown! Greaser!

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    By using the evidence to tell a more compelling and convincing story that even with other weak links, the chain would not have broken.
     
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  36. woodchucker

    woodchucker Cleared for Takeoff

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    Kind of a side point, but I make it a habit to search for listed private airfields near my flight path. Sometimes they are impossible to discern from the surrounding terrain. Sure, you can make assumptions but you may not be correct. I'm just not sure directing a pilot under duress to a private field ought to be policy. Nearest public field is x miles at y heading is the best that should be expected i would think. Outside that the PIC needs to be in command of potential options.
     
  37. MooneyDriver78

    MooneyDriver78 En-Route

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    Most modern portables (like Aera 660) you can go to the nearest page, and it will update the page as you fly. So at a moment’s notice you know what heading and distance of nearest airport. There are also glide rings on Garmin Pilot. I often see pictures of pilots with multiple screens all showing the map page. I usually have traffic and nearest pages displayed.
    I’ve also tried to identify private airports and believe many don’t exist anymore, database never gets updated.
     
  38. PPC1052

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  39. luvflyin

    luvflyin Final Approach

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    In Probable Cause and Findings, no ATC responsibility was mentioned. At anytime during your ‘divvy up’ the money hearings, was Radar Service not terminated and release to the CTAF not happening until just 3 miles from the airport ever brought up?
     
  40. PPC1052

    PPC1052 En-Route

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    Not exactly sure what you are asking. However, from the district court's order, here is a very detailed description of the ATC controller's conduct (emphasis added):

    Air traffic controller Fritz assumed responsibility for INDTRACON-E and was at his radar/computer console approximately ten minutes before the collision in question occurred. He controlled the progress of the Saratoga as it travelled south until he terminated radar service and instructed Bennett to change his transponder code from "0301" to "1200". Controller Fritz admitted that, after that transmission, he no longer monitored the flight path of the Saratoga aircraft. At approximately the same time, Fritz was also working another IFR aircraft and attempting to locate a missing flight strip for some military aircraft that were soon to be entering Fritz's area.

    Approximately 45 seconds prior to first contact by radio from Mullen, the pilot of the MU-2, and approximately 75 seconds prior to the collision, Fritz had his last communication with the Saratoga. At that time, Fritz clearly knew the location, speed, and altitude of the Saratoga and its position relative to its declared destination of the Greenwood Airport. Fritz's instruments continued to track the Saratoga south toward its stated destination at a constant speed. By the time of the collision, the Saratoga had only varied in altitude by descending approximately 400 feet. It should have been evident to Fritz, without even observing his scope, that the Saratoga would be descending to achieve its stated goal of landing at Greenwood.

    When Mullen contacted Indianapolis Departure Control, Fritz responded immediately and gave Mullen a discrete transponder code. The transponder code was available from Mullen's filed flight plan which was reduced to a flight strip which was in its proper location by Fritz's right hand. The immediate response by Fritz shows that he was aware of the MU-2's impending flight, either because he had reviewed the flight strips when he started work or because the strip was immediately handy to him. Although Mullen departed approximately an hour later than the estimated time on his flight strip, this was not an uncommon practice for pilots. Thus it was reasonable for Fritz to still expect the MU-2 to depart from Greenwood Airport for its planned IFR flight to Columbus.

    Fritz testified that he knew the wind direction at the Indianapolis airport and that he generally knew that the Greenwood runway was a north-south runway. However, he stated that he did not know the direction of the winds at Greenwood (even though it is less then fifteen miles from the Indianapolis airport) or pilots' preferences for landing into the wind. The court notes that there was testimony from at least one ATC expert that a good ATC would know this information. However, at the very least, Mullen's "off Greenwood" transmission should have directed Fritz's attention to Greenwood Airport on his scope.

    Fritz's radar scope projected radar returns as well as computer-generated target symbols and flight data including transponder coding, altitude, and speed. It showed the location of satellite airports in the Indianapolis area, including Greenwood. At a minimum, Fritz had a radar image and a computer-generated VFR target on his scope showing the MU-2 climbing and moving away from the north end of the Greenwood Airport with the MU-2's altitude displayed. At the same time, the Saratoga continued to be present on Fritz's scope tracking south toward the Greenwood area.

    Fritz's instruments clearly showed that the Saratoga and MU-2 were on converging flight paths. Fritz had no obstructions to his view of these two aircraft on his scope. The information directly in front of Fritz clearly showed that there were two aircraft flying into the same airspace.

    Measuring the elapsed time from the point at which Mullen announced "off Greenwood" (1956:48.0) (the latest event which should have caused air controller Fritz to look at his scope in the Greenwood area) until the probable time of impact (1957:07-1957:11) results in a minimum time of 19 seconds and perhaps as much as 23 seconds available to Fritz to issue a traffic alert or other warning.

    The Court further infers that because Fritz had recently received transmissions from the Saratoga, and because Fritz expected or should have expected the departure of the MU-2 from Greenwood, Fritz should have scanned the Greenwood area on his radar scope at the time of the MU-2's first call up which was completed at 1956:44. Using this as a starting point, Fritz had between 21 seconds and 25 seconds in which to observe the situation and issue an alert.

    *1534 At 10 seconds prior to the collision the aircraft were still more than ½ mile apart. Testimony showed that a warning even 3-4 seconds before the collision would have been helpful in the avoidance of the collision (which even Government pilot expert Coogan concedes). In fact, the 21-25 seconds even exceeds the time submitted in documents drafted by the FAA which provide that 12.5 seconds is sufficient time for an average unalerted pilot to see and avoid a potential plane. An alert would decrease this response time substantially. In the exercise of required vigilance, air controller Fritz had more than sufficient time to see and or hear indicia of the converging aircraft and issue an alert. His failure to do so was a proximate cause of the accident. Had Mullen been warned of the proximity of another aircraft, his chances of seeing and avoiding the other aircraft would have been greatly enhanced.

    A videotape of a re-creation of the data available at Fritz's radar scope for the relevant time period shows that, for the 15 to 20 seconds following Mullen's radio transmission that the MU-2 was "off Greenwood", the MU-2 and the Saratoga continued on a converging collision course. During that period, Fritz never alerted either pilot of the presence of the other aircraft. It is reasonable for this court to infer that the reason Fritz failed to notice that the aircraft were on a collision course was that his full attention was not focused on the radar scope during the relevant period, nor was he correlating the recently heard destination of the Saratoga with the more recent audio information from the MU-2.

    The court finds by a preponderance of the evidence that, if Fritz had exercised reasonable care to observe and recognize that the aircraft were on a collision course, he could have issued a safety alert to the pilots in time for them to see the other aircraft and to take action necessary to avoid the collision.

    Fritz's failure to become aware of the unsafe proximity of the aircraft under these circumstances was negligent. Specifically, he knew the Saratoga intended to land at Greenwood and less than 45 seconds later he was in radio contact with an aircraft stating that it was taking off from Greenwood. Both aircraft appeared on Fritz's scope which showed the aircraft were on a potential collision course. The court finds that Fritz's inattention to his radar scope was such that he was unaware of the unsafe proximity of the Saratoga and MU-2 and his resulting failure to issue a warning or safety alert to Mullen was a breach of his primary duty to prevent a collision between aircraft. The United States, through its agent, Fritz, was negligent in failing to remain vigilant, to observe and recognize that the two aircraft were in unsafe proximity to one another and on a collision course and to issue a safety alert or warning to Mullen in time for them to see and take action to avoid the collision.​
     
    Last edited: Feb 14, 2020